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Flea market owner liable for vendors’ pirated music

Law Review, By Jim Porter

One of the ways I would maintain my sanity during law school was to go almost every Sunday to the Alameda Flea Market. I had no money but always bought some little thing to justify the trip. Antique postcards, a vintage book and even a used crescent wrench. You meet some interesting folks at flea markets.

If you haven’t been there, check out Denio’s Roseville Farmer’s Market. In addition to the usual assortment of goodies, they feature fresh produce.



I remember checking out a vendor at the Alameda Flea Market who sold cassettes for very cheap prices. I figured they were “knock-offs.” I don’t recall ever buying any, not for the principle, but because the sound was “tinny.” But how would I know that if I didn’t buy one?



Flea market owner

Richard Sinnott is the owner and operator of the Marysville Flea Market, which operates every Sunday with approximately 200 vendor booths, drawing roughly 1,500 customers. On any given Sunday, the Marysville Flea Market featured three vendors who sold counterfeit CDs and cassettes. Some of the vendors even admitted they were not original recordings.

Recording Industry Association of America investigators, having nothing better to do, went to the flea market on six different occasions and documented sales of the pirated and counterfeit CDs and cassettes. “Pirated” are dupes which are obvious copies, while “counterfeit” copies also copy the packaging and artwork to pass the copies off as originals. Bet you didn’t know that.

Sony, Et Al.

Having seen enough, 23 recording companies, every major label in the business, sued Sinnott.

Sinnott’s defense was that he didn’t really know the vendors were selling counterfeit and pirated music and that he himself didn’t sell CDs or cassettes. He added that he didn’t receive any direct benefit from the infringing sales. He just rented space to vendors.

Vicarious copyright infringement

Unfortunately for the owner of the Marysville Flea Market, there is a doctrine known as “Contributory Infringement” or “Vicarious Copyright Infringement,” defined by the court as, “one who, with knowledge of the infringing activity, induces, causes or materially contributes to the infringing conduct of another.”

Decision

The Federal District Court had no problem finding that the owner of the Marysville Flea Market was a contributory infringer. Sinnott knew, by the cheap pricing if for no other reason, that the music was not original. He had the ability to control the vendors, and in fact, excluded certain types of vendors like food sellers. He contributed to the vendors’ illicit business by providing space, parking and customers, and he benefited from the sales because “bargain basement prices are a ‘draw’ for Marysville Flea Market customers.”

The court analogized to a racetrack owner who was found responsible when the musician he hired to entertain fans between races played copyrighted music without a license.

It’s hard to argue with Sinnott’s compelling facts, but I would think the recording association has bigger fish to fry.

Jim Porter is an attorney with Porter-Simon, with offices in Truckee, South Lake Tahoe and Reno. He may be reached at porter@portersimon.com or at the firm’s Web site http://www.portersimon.com.


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